United States v. Cavazos ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10583
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO SALAZAR CAVAZOS,
also known as Paco UNKNOWN,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:98-CR-108-5
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December 5, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Francisco Salazar Cavazos, now federal prisoner # 80697-079, appeals the district court's
denial of his FED. R. CRIM. P. 35(b) motion for reduction of sentence. The district court held that it
lacked the authority to consider the motion because Rule 35(b) permits the Government to move for
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
a reduction in sentence based on substantial assistance but the Government had not filed such a
motion.
Cavazos correctly notes that this court's precedent establishes that "the Government's failure
to file [a Rule 35(b)] mo tion is not reviewable unless the defendant makes a 'substantial threshold
showing' that the government's refusal is based upon unconstitutional motives," such as race or
religion. United States v. Sneed, 63 F.3d 381, 388-89 n.6 (5th Cir. 1995); see Wade v. United States,
504 U.S. 181, 185-86 (1992). Cavazos argues that our interpretation of Wade is overly restrictive
and incorrect. However, we are bound by our precedent absent an intervening Supreme Court
decision or a subsequent en banc decision. See United States v. Short, 181 F.3d 620, 624 (5th Cir.
1999).
Cavazos argues that the Government's failure to move for a sentence reduction was not
rationally related to any legitimate governmental interest and/or was in bad faith. He has not shown
that he made this argument to the district court, and he has not made the substantial threshold
showing necessary to establish an unconstitutional motive by the Government. See Sneed, 63 F.3d
at 388-89 n.6; Wade, 504 U.S. at 186.
Cavazos has also field a motion for the appointment of counsel. That motion is DENIED.
AFFIRMED. MOTION DENIED.
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